Wednesday, February 15, 2017

It's Not a Lie If You Believe It, So Why Was Flynn Really Pushed Out?

by Michael Dorf

In a classic Seinfeld clip, George Costanza reminds Jerry that "it's not a lie if you believe it."



With this bit of wisdom in mind, the (apparently forced) resignation of National Security Advisor Michael Flynn Monday night presents difficulties for the official story that Trump lost the ability to trust Flynn because Flynn's lying to Vice President Mike Pence led Pence to state untruths to the media. For one thing, as White House Press Secretary Sean Spicer confirmed yesterday, President Trump already knew two weeks earlier that Flynn had dissembled when he told Pence he had not discussed lifting sanctions with the Russian ambassador during the transition.

Thus, it appears that Flynn was not let go because he lied to VP Pence. Rather, as confirmed by the Tweeter in Chief on the morning after Flynn's resignation, apparently Flynn was let go because the public found out that Flynn lied to Pence. Why else would Trump think that leaks, rather than lying or worse by his National Security Advisor, are the "real story" regarding national security?

To be sure, Spicer also claimed that the White House for some time had been evaluating Flynn's ability to continue serving "on a daily basis." This claim contradicts most of reality--including the prominent role that Flynn played in the Trump national security team right up until his resignation. It is also not credible on its face.

Anyway why would lying to Pence be such a terrible offense in this White House? Trump himself lies constantly, and he praises people who lie on his behalf.

Is Pence different? Well in some obvious sense, of course. Pence is a conventional, albeit very conservative, politician, one who is not above stretching the truth in the manner of nearly all politicians but not someone who, prior to his association with Trump, was known as especially dishonest.

The key there, however, is the qualifier "prior to his association with Trump." Think back to the Vice Presidential debate between Pence and Senator Tim Kaine. According to most accounts, Pence "won" the debate by being less hyper and interrupting less than Kaine did. But also by lying a whole lot, often by describing as "nonsense" Kaine's claims that Trump had said things that everyone knew Trump had in fact said.

If Pence was willing to tell obvious lies for Trump, why should he or anyone else on Team Trump be upset about the fact that, as a result of Flynn's lie to Pence, Pence ended up unknowingly making a false statement in reliance on what Flynn told him. Costanza's aphorism was funny because he implied that a liar could turn himself into a non-liar simply by willing himself to believe what he knows to be false. However, when someone really doesn't know that what he says is false, he can't be lying; he can only be mistaken.

So why was Flynn really forced out? Let's consider a few possibilities.

(1) Let's begin with the cover story. It states that the problem wasn't that Flynn's lie led Pence to make an inadvertently false statement; rather, the problem was that Pence and Trump have learned that they can't trust Flynn to be honest with them. This is superficially plausible. Although Trump is a pathological liar, he might nonetheless demand that his advisors only lie for him, never to him. Note that this explanation would require that we dismiss as self-serving Flynn's own claim--in his resignation letter--that he had inadvertently misinformed Pence about the content of his conversation with the Russian ambassador. However, this theory is only superficially plausible because of the timing. As noted above, Trump and Pence appear to have been untroubled by Flynn's dissembling until the public found out about it.

(2) So maybe Flynn was let go because of his wrongdoing. The Logan Act is the most obvious candidate for a law violation, but it is not even clear that it applies to a member of the presidential transition team and it has never actually been enforced. I find it hard to believe that Trump was troubled by this--and again, the timing is problematic here too. Moreover, yesterday Spicer insisted that in talking to the Russians about lifting sanctions, Flynn "did nothing wrong."

(3) Another possibility is that Flynn was getting pressure to resign from the FBI, the CIA, and/or others in the national security establishment. They may have more dirt on him. This scenario strikes me as possible. If true, it would also be very troubling. Even though Flynn was a terrible choice for National Security Advisor--given his bigoted views of Muslims, his poor management skills, and his penchant for believing unfounded conspiracy theories--national security professionals should not be blackmailing White House staff or others in government.

(4) The most ominous possibility, of course, is that Flynn is simply a fall guy. He's not innocent in this view, but he also didn't act alone--and his assurances to the Russian ambassador were only the tip of a much larger iceberg of collusion with a foreign power by Trump campaign and later White House staff. That's the story the FBI has been investigating for months. Look for journalists to keep digging and leakers to keep leaking.

Bottom Line: If Flynn was in fact pushed out to take the heat off of Trump and/or others for contacts with the Russians during the campaign, the tactic almost certainly will fail. Trump undoubtedly would like to change the subject but for some time now, many in the press corps--likely abetted by leakers within the national security apparatus and maybe even the White House--will be asking this question that is dominating headlines this morning: What did the president know and when did he know it?

13 comments:

Shag from Brookline said...

Trump's firing of Acting AG "Rowdy" Yates for declining to defend Trump's immigration EO was perhaps really for being the messenger to Team Trump of the Flynn brouhaha.

I go with Mike's door 4. A recent NYTimes editorial by a Board member compares Trump to the Rodney Dangerfield character in "Caddyshack." (I compare Pence to the Ted Knight character in that movie.) As noted in the post Trump is more concerned with the "leaks" on Flynn rather than Flynn's sin. Continuing with "Caddyshack," Trump will need a Bill Murray character to get at the moles doing the leaking. And speaking of Bill Murray, can we expect Team Trump to repeat the Flynn debacle in the manner of "Groundhog Day"?

Joe said...

"evaluating Flynn's ability to continue serving"

On some level, this appears accurate -- the discussion notes that this "ability" is not the same as what might be said to be GOOD reasons to keep him on. Liabilities come in different flavors, including useful tools who lose value when they aren't useful any more. The fact they broke the law etc. not necessary the point.

Anyway, it's hard to believe that Trump or those behind him wasn't actively involved in some nefarious business here. Where there is smoke. This is not the same as being able to prove it, but at this level (Russia involvement in U.S. elections), even the tip of the iceberg should be rather damning (and scary).

John Smith said...

The truth is T's Kryptonite. Always has been. Always will be. His entire career has been built on flim-flammimg unwitting peons. When confronted with the damaging truth, he will protect himself and his fragile self-image at any cost and by any means, including obfuscation, diversion, distraction, and outright blatent lying. When one throws his closest advisors -- Bannon & Miller -- in the mix, one can only hope that American democracy can survive. If it is to be saved, that task will (as during Nixon's regime) fall upon the Fourth Estate.

Michelle R. said...

Former student, long time reader with a question: We have the NYT headline today, "Trump campaign aides had repeated contacts with Russian intelligence." If evidence emerges that Trump's campaign accepted help from Russian intelligence to rig the election, what recourse is there? I assume if current administration officials are charged with crimes, that would lead to their eventual exit. Perhaps this will lead to a Trump impeachment proceeding. But, either way, that leaves the Republicans holding the presidency. Is there any constitutional, legal, statutory, or other basis for holding another election? (If I missed that day in con law, I swear it was only that one).

Shag from Brookline said...

I missed no con law classes in 1952 and this issue was not raised/addressed. The Framers did not address this situation, assuming any of them thought something like this might happen. Consider the presidential election of 1800 and the Constitution as then in effect. Changes by formal amendments were made to address that situation and others that might arise. I'm not aware of some equitable principle in the Constitution - or outside the Constitution - that might address this. Lessons were learned after Nixon/Watergate but were forgotten with regard to Trump. Impeachment? 25th A? If applicable, neither provides for a do-over.

I'm not trying to pre-empt Mike, but these thought came to mind. Also I have thought about the final Newhart TV episode where it was all a dream. In this case, it's a nightmare. But I don't think a second constitutional convention is in order, as that might bring out more Trump-types out of the political woodwork.

I hope Mike has a better answer.

Joe said...

Might be a result of smoking some strong wacky tobacky, but there's this to perhaps help Michelle R.:

http://balkin.blogspot.com/2017/02/the-25th-amendment-option-law-and.html

(including the final note)

If we draw things out, there is also the possibility of a change of the guard in Congress after 2018 and the order of succession after Pence can be Democratic. Or, a few Republicans can shift and Sen. Hatch can be replaced by Sen. Leahy:

http://nydn.us/2ljgTrT

Michael C. Dorf said...

In response to Michelle R., there is indeed no constitutional mechanism for a do-over. If the Prez goes, the VP becomes Prez and then selects a new VP (subject to Congressional approval). Even the fantasy in the last paragraph of the Tushnet piece on Balkinization that Joe links utilizes this mechanism. In some ways, the more interesting question is what happens if the Prez and VP are simultaneously gone. Suppose, say, that it turns out that Pence and Trump were both Russian agents. Then comes the Speaker of the House and then everyone else in order of the Presidential Succession Act: https://www.law.cornell.edu/uscode/text/3/19

In a 1995 article, the Amar brothers argued that the Presidential Succession Act is invalid (because it has members of Congress in the line of succession): http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=1959&context=fss_papers

They proposed that in the event of simultaneous vacancies in the presidency and the vice presidency, there should be a special election. But Congress hasn't taken them up on their offer.

Michelle R. said...

Good to know I shouldn't get my hopes up for a special election. It was the terror of the current line of succession that had me wondering if there was a mechanism to avoid it and see the will of the popular vote re-instated. Odd, to me at least, that we have no provision for a special election in the event of election rigging, or similar malfeasance. I suppose the pay off if both Trump and Pence go at the same time could be the electorate punishing the Republicans in subsequent cycles. But these days that feels as much like a fantasy as anything else.

Shag from Brookline said...

Speaking of fantasy, China just granted President Trump a 10-year trademark on the Trump name. Emolument? quid pro quo for Trump's shift back to a one-China policy or dropping Obama's TPP? Truth is stranger than fiction?

Joe said...

The details suggest there might not be much there there:

https://www.washingtonpost.com/news/worldviews/wp/2017/02/16/no-fake-trump-hotels-in-china-but-no-special-favors-for-the-president-either/?utm_term=.81695c5ca8b4

Shag from Brookline said...

I can appreciate that to be an emolument there must be some value. But the China registration might prevent others in China from using the name Trump on a hotel or other matter covered by the trademark. That may have some value in minimizing competition until after the Trump presidency ends. In any event, Trump's ego suggests that this China trademark is yuge!

Joe said...

The article near the end cites someone who argues it can be a problem but near the beginning we are told that this is a longstanding battle & the actual decision really came before the election. So, not sure how much is 'there.'

Shag from Brookline said...

With Trump there is always a there there. Imagine Trump's reaction to the world's largest nation population-wise honoring his brand! That's yuger than yuge. But this may actually be a variation of the Chinese water torture with the brand serving somewhat as a pinata for Chinese entertainment. The VC has an item on this subject but I haven't opened it because I've used up my monthly WaPo freebies. I imagine Trump's sons running the Trump Empire will point to this recognition by China of the brand as positive even though there's a commitment not to expand internationally at this time; this recognition in the sons' minds might add value to the brand in America as it expands its activities. If brought to the attention of the GOP Congress as an emolument calling for action, I wonder how the vote for approval might go. I may not have "standing" on this but comedians do.